FEDERALIST No. 77

The Appointing Power Continued and Other Powers of the Executive
ConsideredFrom the New York Packet.
Friday, April 4, 1788.Alexander Hamilton

To the People of the State of New York:

IT HAS been mentioned as one of the advantages to be expected
from the co-operation of the Senate, in the business of appointments,
that it would contribute to the stability of the administration.
The consent of that body would be necessary to displace as well
as to appoint. A change of the Chief Magistrate, therefore, would
not occasion so violent or so general a revolution in the officers
of the government as might be expected, if he were the sole disposer
of offices. Where a man in any station had given satisfactory
evidence of his fitness for it, a new President would be restrained
from attempting a change in favor of a person more agreeable to
him, by the apprehension that a discountenance of the Senate might
frustrate the attempt, and bring some degree of discredit upon
himself. Those who can best estimate the value of a steady administration,
will be most disposed to prize a provision which connects the
official existence of public men with the approbation or disapprobation
of that body which, from the greater permanency of its own composition,
will in all probability be less subject to inconstancy than any
other member of the government.

To this union of the Senate with the President, in the article
of appointments, it has in some cases been suggested that it would
serve to give the President an undue influence over the Senate,
and in others that it would have an opposite tendency, a strong
proof that neither suggestion is true.

To state the first in its proper form, is to refute it. It amounts
to this: the President would have an improper INFLUENCE OVER the
Senate, because the Senate would have the power of RESTRAINING
him. This is an absurdity in terms. It cannot admit of a doubt
that the entire power of appointment would enable him much more
effectually to establish a dangerous empire over that body, than
a mere power of nomination subject to their control.

Let us take a view of the converse of the proposition: "the Senate
would influence the Executive." As I have had occasion to remark
in several other instances, the indistinctness of the objection
forbids a precise answer. In what manner is this influence to
be exerted? In relation to what objects? The power of influencing
a person, in the sense in which it is here used, must imply a
power of conferring a benefit upon him. How could the Senate confer
a benefit upon the President by the manner of employing their
right of negative upon his nominations? If it be said they might
sometimes gratify him by an acquiescence in a favorite choice,
when public motives might dictate a different conduct, I answer,
that the instances in which the President could be personally
interested in the result, would be too few to admit of his being
materially affected by the compliances of the Senate. The POWER
which can ORIGINATE the disposition of honors and emoluments,
is more likely to attract than to be attracted by the POWER which
can merely obstruct their course. If by influencing the President
be meant RESTRAINING him, this is precisely what must have been
intended. And it has been shown that the restraint would be salutary,
at the same time that it would not be such as to destroy a single
advantage to be looked for from the uncontrolled agency of that
Magistrate. The right of nomination would produce all the good
of that of appointment, and would in a great measure avoid its
evils. Upon a comparison of the plan for the appointment of the
officers of the proposed government with that which is established
by the constitution of this State, a decided preference must be
given to the former. In that plan the power of nomination is unequivocally
vested in the Executive. And as there would be a necessity for
submitting each nomination to the judgment of an entire branch
of the legislature, the circumstances attending an appointment,
from the mode of conducting it, would naturally become matters
of notoriety; and the public would be at no loss to determine
what part had been performed by the different actors. The blame
of a bad nomination would fall upon the President singly and absolutely.
The censure of rejecting a good one would lie entirely at the
door of the Senate; aggravated by the consideration of their having
counteracted the good intentions of the Executive. If an ill appointment
should be made, the Executive for nominating, and the Senate for
approving, would participate, though in different degrees, in
the opprobrium and disgrace.

The reverse of all this characterizes the manner of appointment
in this State. The council of appointment consists of from three
to five persons, of whom the governor is always one. This small
body, shut up in a private apartment, impenetrable to the public
eye, proceed to the execution of the trust committed to them.
It is known that the governor claims the right of nomination,
upon the strength of some ambiguous expressions in the constitution;
but it is not known to what extent, or in what manner he exercises
it; nor upon what occasions he is contradicted or opposed. The
censure of a bad appointment, on account of the uncertainty of
its author, and for want of a determinate object, has neither
poignancy nor duration. And while an unbounded field for cabal
and intrigue lies open, all idea of responsibility is lost. The
most that the public can know, is that the governor claims the
right of nomination; that TWO out of the inconsiderable number
of FOUR men can too often be managed without much difficulty;
that if some of the members of a particular council should happen
to be of an uncomplying character, it is frequently not impossible
to get rid of their opposition by regulating the times of meeting
in such a manner as to render their attendance inconvenient; and
that from whatever cause it may proceed, a great number of very
improper appointments are from time to time made. Whether a governor
of this State avails himself of the ascendant he must necessarily
have, in this delicate and important part of the administration,
to prefer to offices men who are best qualified for them, or whether
he prostitutes that advantage to the advancement of persons whose
chief merit is their implicit devotion to his will, and to the
support of a despicable and dangerous system of personal influence,
are questions which, unfortunately for the community, can only
be the subjects of speculation and conjecture.

Every mere council of appointment, however constituted, will be
a conclave, in which cabal and intrigue will have their full scope.
Their number, without an unwarrantable increase of expense, cannot
be large enough to preclude a facility of combination. And as
each member will have his friends and connections to provide for,
the desire of mutual gratification will beget a scandalous bartering
of votes and bargaining for places. The private attachments of
one man might easily be satisfied; but to satisfy the private
attachments of a dozen, or of twenty men, would occasion a monopoly
of all the principal employments of the government in a few families,
and would lead more directly to an aristocracy or an oligarchy
than any measure that could be contrived. If, to avoid an accumulation
of offices, there was to be a frequent change in the persons who
were to compose the council, this would involve the mischiefs
of a mutable administration in their full extent. Such a council
would also be more liable to executive influence than the Senate,
because they would be fewer in number, and would act less immediately
under the public inspection. Such a council, in fine, as a substitute
for the plan of the convention, would be productive of an increase
of expense, a multiplication of the evils which spring from favoritism
and intrigue in the distribution of public honors, a decrease
of stability in the administration of the government, and a diminution
of the security against an undue influence of the Executive. And
yet such a council has been warmly contended for as an essential
amendment in the proposed Constitution.

I could not with propriety conclude my observations on the subject
of appointments without taking notice of a scheme for which there
have appeared some, though but few advocates; I mean that of uniting
the House of Representatives in the power of making them. I shall,
however, do little more than mention it, as I cannot imagine that
it is likely to gain the countenance of any considerable part
of the community. A body so fluctuating and at the same time so
numerous, can never be deemed proper for the exercise of that
power. Its unfitness will appear manifest to all, when it is recollected
that in half a century it may consist of three or four hundred
persons. All the advantages of the stability, both of the Executive
and of the Senate, would be defeated by this union, and infinite
delays and embarrassments would be occasioned. The example of
most of the States in their local constitutions encourages us
to reprobate the idea.

The only remaining powers of the Executive are comprehended in
giving information to Congress of the state of the Union; in recommending
to their consideration such measures as he shall judge expedient;
in convening them, or either branch, upon extraordinary occasions;
in adjourning them when they cannot themselves agree upon the
time of adjournment; in receiving ambassadors and other public
ministers; in faithfully executing the laws; and in commissioning
all the officers of the United States.

Except some cavils about the power of convening EITHER house of
the legislature, and that of receiving ambassadors, no objection
has been made to this class of authorities; nor could they possibly
admit of any. It required, indeed, an insatiable avidity for censure
to invent exceptions to the parts which have been excepted to.
In regard to the power of convening either house of the legislature,
I shall barely remark, that in respect to the Senate at least,
we can readily discover a good reason for it. AS this body has
a concurrent power with the Executive in the article of treaties,
it might often be necessary to call it together with a view to
this object, when it would be unnecessary and improper to convene
the House of Representatives. As to the reception of ambassadors,
what I have said in a former paper will furnish a sufficient answer.

We have now completed a survey of the structure and powers of
the executive department, which, I have endeavored to show, combines,
as far as republican principles will admit, all the requisites
to energy. The remaining inquiry is: Does it also combine the
requisites to safety, in a republican sense, a due dependence
on the people, a due responsibility? The answer to this question
has been anticipated in the investigation of its other characteristics,
and is satisfactorily deducible from these circumstances; from
the election of the President once in four years by persons immediately
chosen by the people for that purpose; and from his being at all
times liable to impeachment, trial, dismission from office, incapacity
to serve in any other, and to forfeiture of life and estate by
subsequent prosecution in the common course of law. But these
precautions, great as they are, are not the only ones which the
plan of the convention has provided in favor of the public security.
In the only instances in which the abuse of the executive authority
was materially to be feared, the Chief Magistrate of the United
States would, by that plan, be subjected to the control of a branch
of the legislative body. What more could be desired by an enlightened
and reasonable people?